Citation NR: 9634735
Decision Date: 12/06/96 Archive Date: 12/13/96
DOCKET NO. 95-41 000 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Togus, Maine
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of service connection for a heart disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Shawkey, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1969 to August
1971.
This matter comes to the Board of Veteransí Affairs (Board)
on appeal from a January 1995 RO rating decision that denied
the veteranís application to reopen a claim of service
connection for a heart disability.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he had a pre-existing dormant heart
condition which became symptomatic in service resulting in a
chronic permanent condition. He and his representative
contend that a private doctorís statement has been submitted
which shows that the veteran had no heart problems prior to
service and thus constitutes new and material evidence.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that new and material evidence
has not been submitted to reopen a claim of service
connection for a heart disability.
FINDINGS OF FACT
1. An independent medical expert opinion is not warranted in
this case as consideration has not been given to the merits
of the underlying claim of servie connection.
2. Evidence submitted since the May 1993 RO decision is
either cumulative of earlier considered evidence or, when
viewed in the context of all the evidence raises no
reasonable possibility of changing the outcome of his prior
adverse decision.
CONCLUSIONS OF LAW
1. An independent medical expert opinion is not warranted.
38 U.S.C.A. ß 7109 (West 1991).
2. Evidence submitted since the May 1993 RO decision, which
denied the veteranís application to reopen a claim of service
connection for a heart disability, is not new and material;
the claim of service connection for a heart disability is not
reopened; and the May 1993 decision is final. 38 U.S.C.A.
ßß 5108, 7104 (West 1991); 38 C.F.R. ßß 3.156 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteranís March 1969 enlistment examination report shows
that he had a history of probable paroxysmal auricular
tachycardia. The report also shows that he had a soft
systolic blow at the base that was exaggerated with exercise
and markedly exaggerated with respiration and on left lateral
position. According to the report the veteran had a negative
cardiac examination. Also noted was the lack of
electrocardiogram confirmation or documentation.
The veteran indicated on a March 1969 Report of Medical
History that he had had shortness of breath and pain or
pressure in his chest. The report further indicates that he
had a five year history of rapid heart rate that occurred
once a week.
On file is a service medical record dated in May 1969 which
shows that the veteran was discovered to have a heart murmur
at age 19. The veteran reported having periodic rapid heart
action within the previous five years that occurred two to
three times a week with an occasional two week interval
without attacks. He said that if the attacks lasted longer
than a few moments he would experience dimness of vision and
lightheadedness and would be forced to lie down. According
to the report the veteran had been unsuccessful in his
efforts to have an examination when the attacks occurred. On
examination there were no murmurs heard in the upright
position, and the veteran had a regular sinus rhythm. A
systolic murmur was heard when the veteran bent forward. An
impression was given of probable paroxysmal auricular
tachycardia by history. It was noted that Wolff-Parkinson-
White syndrome was not present, and the cardiac murmurs were
of relative low intensity and not considered significant in
themselves. It was also noted that the veteran had a bona
fide history of tachycardia.
An electrocardiographic record dated in March 1970 reveals
that the veteranís rightward anterior terminal forces were
normal for his age. A routine chest X-ray performed in
February 1971 was within normal limits.
The veteranís heart was shown to be normal in thrust, size,
rhythm and sound at his July 1971 separation examination.
On file are numerous medical records dated in December 1977
and January 1978. These records show that in December 1977
the veteran was admitted to a VA medical facility for
complaints of having brief spells of loss of consciousness
lasting two to three seconds, and occurring one to two times
a week for the past two months. It was noted that the
veteran had paroxysmal auricular tachycardia since his early
teens which was generally associated with dizziness, ringing
in his ears, headache, and blurred vision. The veteran said
that the condition was triggered whenever he was tired or
anxious. He also said that it had been discovered seven to
eight years earlier. The physician noted that the veteran
was not consistent as to when the condition actually
occurred. An initial impression was given of syncope, by
history of questionable etiology, paroxysmal atrial
tachycardia by history, and anxiety. The records include a
January 1978 electroencephalogram (EEG) report showing normal
results.
In December 1978 the veteran was hospitalized at a VA medical
facility for conditions that included syncope of undermined
etiology and paroxysmal auricular tachycardia, by history.
On file are private medical office notes from 1983 to 1985
showing follow-up visits for irregular heart beats. These
notes show that the veteran had ventricular tachycardia and
was receiving good results from prescribed Tonocard.
In November 1985 the veteran filed a claim for VA
compensation benefits for ventricular tachycardia
dysrhythmia.
On a January 1986 VA medical examination report the veteran
reported that he first noticed a galloping heartbeat during
combat training in August 1969. He said that he had gone on
sick call at that time and was told that a fast heartbeat was
normal considering the stressful training that he had been
undergoing. He said that after passing out more frequently
during ďepisodesĒ in the 1980s, he saw a physician who
diagnosed tachycardia dysrhythmia. He said that his
condition worsened in the summer of 1985 and he was laid off
from his job in June 1985. He said he had not worked since.
On examination the veteran had normal sinus rhythm, but there
was a definite irregularity to the apical heartbeat and the
peripheral pulses, especially the radial pulse. The examiner
indicated that a cardiology consultation was initiated for a
second opinion diagnosis of ventricular tachydysrhythmia.
In February 1986 the veteran was evaluated at a VA medical
facility for long-standing ventricular arrhythmia. According
to a February 1986 VA electrophysiological study report, the
veteran had a long history of episodic palpitations
associated with syncope, first noted in 1969. Due to
recurrent syncopal episodes in 1983, medical attention had
been sought by the veteran. On examination the veteranís
heart showed irregular beats, but no murmurs. The veteran
was diagnosed as having supraventricular tachycardia.
In March 1986 the RO denied the veteranís claim of service
connection for a heart disability.
On file is a July 1986 VA medical report which shows that the
veteran had been seen at the medical facility for the past
five months and had a history of wide complex tachycardia
that produced multiple syncopal episodes since 1969. The
examiner indicated that the veteran had been misdiagnosed as
having ventricular tachycardia, but he actually had a
supraventricular tachycardia with a Mahaim fiber serving as a
bystander pathway. The physician further indicated that the
arrhythmia was in the process of being controlled, but that
nothing would be certain for at least one year.
On an October 1986 VA medical examination report, the veteran
complained of having a peculiar heartbeat upon light exertion
accompanied by headaches, dizziness, weakness, occasionally
blurred vision, and severe fatigue. The veteran was
diagnosed as having a supraventricular tachycardia of an
unusual type called an AV nodal re-entry rhythm. The
examiner indicated that a review of the veteranís military
records revealed episodes of a similar nature that were never
diagnosed because they were never picked up on EKG, but that
a presumptive diagnosis of paroxysmal atrial tachycardia had
been made at that time.
On file is a February 1987 VA medical record containing an
assessment of bypass track tachycardia which had
symptomatically improved.
Of record is a December 1988 medical report from a physician
who was the Associate Chief of Cardiology at a VA medical
facility. The physician indicated that the veteran had been
treated at the facility for several years for his heart
condition. He said that the veteranís condition was
congenital resulting from an abnormal conduction tract in his
heart causing the production of arrhythmias. He said that
the veteran apparently had several evaluations during service
for episodes similar to the one he currently described. He
said that unfortunately the veteranís cardiac condition had
not been identified as the cause of his symptoms at that time
which was most likely due to a lack of understanding of the
condition. He said that it was clear from the veteranís
present symptomatology that the episodes were aggravated by
stressful activity as well as anxiety.
In February 1989 the veteranís representative, on behalf of
the veteran, filed an application to reopen a claim of
service connection for a heart disability.
Of record is a June 1989 VA medical report showing continued
treatment for cardiac arrhythmias. The physician said that
it was clear from the veteranís history that his symptoms
appeared to develop during his time in service although, at
least from available records, it was not recognized or
documented that he was having documented arrhythmias at that
time. He also said that there was no way to be sure whether
the stress and high levels of exercise in service may have
worsened the veteranís cardiac condition, but that at least
based on his history, they were exacerbated with the levels
of activity he had to perform in service during basic
training.
On file is a June 1989 letter from Leo F. Stornelli, M.D.,
addressed to the veteran. In the letter Dr. Stornelli
informed the veteran that he no longer had his record, but
that he certainly recalled treating him for supraventricular
tachycardia in the early 1970s.
At a hearing held at the RO before a local hearing officer in
June 1989, the veteran testified that his heart symptoms
continued after service and he was seen by his family
physician, Leo Stornelli, M.D., for a rapid heart beat within
a year after service. He said that Dr. Stornelli diagnosed
him as having paroxysmal atrial tachycardia which was a very
common and non-threatening rhythm disturbance. He said that
he experienced a rapid heart rhythm in 1983 and was diagnosed
as having ventricular tachycardia. He said that he was found
to have a Mahaim fiber in the mid 1980s at a VA medical
facility.
At a hearing held at the RO before a member of the Board in
October 1989, the veteran testified that he did not recall
having a cardiac consultation as part of his enlistment
examination, nor was he aware of a cardiac problem or heart
condition prior to service. He said that his mother had been
told by the family physician that he had a heart murmur, but
he assumed that the condition had cleared up. He said that
in reporting the heart murmur at his pre-induction physical,
he may have mentioned that he felt lightheaded, but that
everyone did from time to time. He said that the first
indication that he had a heart problem arose during basic
training when he was required to carry a man of equal size
and weight over the length of what equated to a football
field. He said that about half way through the course his
heart started racing and pounding and he immediately became
weak and his legs felt rubbery. He said that his ears were
ringing and his vision went dark. He said that he asked to
go to the dispensary but after sitting there for a few
minutes everything calmed down.
In June 1990 the Board denied the veteranís claim of service
connection for a heart disability.
The veteranís brother, sister, father, and longtime friend
submitted letters in October 1990 stating that the veteran
had no known heart problems prior to entering service. They
also said that he had been a very active person during his
school years.
In a November 1990 letter Dr. Stornelli indicated that the
veteran had been under his care until he went into service in
1969. He said that at no time did the veteran have any
problems with arrhythmia prior to his military service.
The veteran noted in a March 1991 letter that at the age of
19 he had no idea that he had a serious heart problem and
that the first major incident occurred in service while
performing the ď150 yard man carry.Ē He said that after that
incident his heart problem sprang up almost daily, but that
the problem was never witnessed because his heart would calm
to a normal rate before he could be seen at the dispensary.
At a RO hearing in March 1991, the veteran testified that he
did not recall giving a statement at the pre-induction
examination to the effect that he had had heart problems and
blackouts since the age of 14. He said that it was possible
that some of his remarks had been taken out of context.
At a hearing at the RO before a member of the Board in
October 1991, the veteran testified that he never experienced
heart palpitations or any other heart symptomatology prior to
service. He said that within a week of basic training he
went into major arrhythmia and collapsed to the ground. He
said that after that incident he began experiencing a rapid
heartbeat on a near daily basis. He said that he frequently
sought medical attention for his heart palpitations in
service, but was told that they were harmless. He said that
his condition remained the same after service, but had
clearly worsened over the years. He said he had been told by
a number of cardiologists that his condition could lay
dormant for years and come to life due to a stressful
traumatic event.
The record contains an October 1991 letter from David T.
Martin, M.D., who said that that veteran was suffering from a
congenital cardiac condition which had been completely
asymptomatic prior to his service enlistment in 1969. He
said that due to the usual stresses and strains of training
in service the veteran began to develop cardiac arrhythmia.
He said that it was clear from the veteranís account and from
the medical records that the veteranís symptoms were at no
time recognized as being due to a cardiac rhythm disorder.
He also said that in retrospect it was unequivocally clear
that that was the time of onset of symptoms relating to the
congenital abnormality. He went on to categorically state
that the experiences that the veteran had been subjected to
in service aggravated a previous existing condition which
until that time had been asymptomatic.
In March 1992, the Board denied the veteranís application to
reopen a claim of service connection for a heart disability
finding that no new and material evidence had been submitted.
In a May 1993 rating decision, the RO denied the veteranís
application to reopen a claim of service connection for a
heart disability finding that no new and material evidence
had been submitted.
Evidence received after the ROís May 1993 rating decision is
summarized below.
The RO received a February 1994 letter from Leo F. Stornelli,
M.D., who stated that the veteran had been under his care
from 1960 until his entry into service in 1969. He said that
during that time the veteran had been in excellent health and
had been seen for only routine exams and minor complaints.
He said that at no time did the veteran have any heart
problems or arrhythmias. He also said that he had seen the
veteran on several occasions for marked arrhythmia problems
between August 1971 and August 1972.
In January 1995 the RO denied the veteranís application to
reopen a claim of service connection for a heart disability
finding that no new and material evidence had been submitted.
The veteran attended a hearing at the RO before a local
hearing officer in December 1995. At the hearing he
testified that at his initial examination in service he gave
verbal information about his background and said that he had
a racing heart and shortness of breath, but he had not been
prevented him from participating in activities. He said he
did not recall going on sick call very much in service due to
his heart problem. He said that following basic training he
did not use any kind of treatment or further evaluations for
a heart condition for the remainder of service. He said it
was not until 1986 that his heart condition was specifically
identified. He said that prior to service a heart murmur had
been identified by his family physician, but the murmur had
nothing to do with his current heart disability. At the
hearing the veteran submitted copies of records from the
Social Security Administration awarding the veteran
disability benefits effective in June 1985 due to severe
supraventricular tachycardia. He also submitted duplicate VA
medical reports dated in July 1986 and December 1988.
At a hearing at the RO before a member of the Board in June
1996, the veteran testified that a statement from Dr.
Stornelli dated in February 1994 constituted new and material
evidence in support of his claim of service connection for a
heart disability. He said that his heart condition was
relatively dormant prior to service, but following an
incident in service it became a chronic active condition. He
said that the incident occurred in basic training when he was
carrying a fellow serviceman, and that he collapsed to the
ground and lost consciousness. He said that he did not
experience any similar episodes prior to service. He said
that as a kid he became lightheaded on physical exertion. He
said that he had been diagnosed in the mid-eighties as having
Mahaim syndrome, and that a heart murmur was not a typical
symptom of the condition. At the hearing the veteranís
representative argued that the veteranís heart problems had
been aggravated in service beyond the natural progression of
the disease.
In June 1996 the veteran requested that an independent
medical examination be conducted in light of the complexity
of the case.
II. Legal Analysis
The veteranís initial claim of service connection for a heart
disability was denied by the RO in March 1986 and confirmed
in a June 1990 Board decision. In a subsequent RO decision
in May 1993, the RO denied the veteranís application to
reopen a claim of service connection for a heart disability;
a decision that he did not appeal. Thus, this decision is
considered final unless new and material evidence has been
submitted to reopen the claim. See 38 C.F.R. ß 3.160(d)
(1995); Evans v. Brown, 9 Vet.App. 273 (1996).
New evidence is that which is not cumulative or redundant of
previously considered evidence. Material evidence is that
which is relevant and probative to the issue at hand and
which, when viewed in the context of all the evidence, raises
a reasonable possibility of a change in the prior adverse
outcome. 38 C.F.R. ß 3.156; Colvin v. Derwinski, 1 Vet.App.
171 (1991). It should also be pointed out that, in
determining whether evidence is new and material,
ďcredibility of the evidence must be presumed.Ē Justus v.
Principi, 3 Vet.App. 510, 513 (1992).
The veteran has requested that the Board consider obtaining
an opinion from an independent medical expert due to the
complexity of his case. In light of the decision to deny the
veteranís application to reopen his claim of service
connection for a heart disability, such a request is not
warranted since consideration has not been given to the
merits of the underlying service connection claim. See Moray
v. Brown, 5 Vet.App. 211 (1993).
When the RO denied the claim in 1993, it considered the
veteranís service medical records which include a March 1969
enlistment examination report noting a history of paroxy
atrial tachycardia, as well a March 1969 Report of Medical
History noting a five year history of rapid heart rate that
occurred once a week. Also included in the service medical
records is a May 1969 cardiac consultation report reflecting
a history of tachycardia and a finding of a systolic murmur.
Additionally, the RO considered the lack of medical
documentation in the service medical records showing
complaints or problems affecting the veteranís heart other
than the noted pre-service problems.
Other evidence considered by the RO in 1993 include numerous
private and VA medical records, some of which reflect
diagnoses given in the late 1970s of history of tachycardia,
as well as a diagnosis in 1986 of supraventricular
tachycardia. The RO also considered two letters from Dr.
Stornelli dated in June 1989 and November 1990. In the June
1989 letter, Dr. Stornelli said that he no longer had the
veteranís records, but that he recalled treating him for
supraventricular tachycardia in the early 1970s. In the
November 1990 letter, Dr. Stornelli said that the veteran had
been under his care until he went into service in 1969, and
that at no time did the veteran have any problems with
arrhythmia prior to service.
The RO also considered hearing testimony given by the veteran
where he denied having any heart problems other than a heart
murmur and occasional lightheadedness prior to service. In
addition, the RO considered statements from the veteranís
family and a friend to the effect that he had no known heart
problems prior to service.
Since the 1993 RO decision, additional evidence has been
submitted consisting of a February 1994 letter from Dr.
Stornelli, hearing testimony from the veteran, duplicate
medical reports and records from the Social Security
Administration awarding disability benefits in 1985. In Dr.
Stornelliís letter, he said that at no time during his
treatment of the veteran between 1960 and 1969 did the
veteran have any heart problems or arrhythmias. He also said
that he saw the veteran on several occasions for marked
arrhythmia problems between August 1971 and August 1972.
With respect to the hearing testimony, the veteran testified
that he did not have a disabling heart condition prior to
service, and his heart condition had been dormant until an
incident in basic training which resulted in a chronic heart
disability.
A thorough review of this additional evidence submitted by
the veteran reveals that it is not new and material and is
not sufficient to raise a reasonable possibility of changing
the prior adverse outcome in 1993. The content of Dr.
Stornelliís February 1994 letter is cumulative of his prior
letters dated in 1989 and 1990 in which he indicates that he
did not treat the veteran for any heart problems prior to
1969, but did treat him for such problems in the early 1970s.
Thus, this evidence has been previously considered in prior
decisions. Similarly, the veteranís testimony given in 1995
and 1996 is consistent with previously considered hearing
testimony and is not capable of changing the prior adverse
outcome in 1993. The records from the Social Security
Administration are in a sense not new evidence inasmuch as
they merely show that the veteran was determined to be
disabled in 1985 due to supraventricular tachycardia, a
condition already shown to have existed at that time. To the
extent that the records are considered new evidence, they are
not material evidence, since they do not link the veteranís
supraventricular tachycardia to service. Cox v. Brown, 5
Vet.App. 95 (1995).
The evidence that has been submitted subsequent to the 1993
RO decision is not both new and material. Thus, the claim of
service connection for a heart disability is not reopened,
and the 1993 RO decision remains final.
ORDER
The application to reopen a claim of service connection for a
heart disability is denied.
G. H. SHUFELT
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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